© Kelly VanBuskirk, Q.C., PhD, C. Arb.
As I review yet another workplace harassment complaint made against yet another unsuspecting manager, I’ve concluded that the law (and, specifically, anti-harassment legislation adopted in most Canadian provinces) will extinguish our current form of inter-office communication. But as an institution, the law really doesn’t want to talk about our problem with workplace interactions; instead, it tells us roughly where the line between acceptable and unacceptable communication is and, then, leaves us to fight over whether that line has been crossed in a specific case. Make no mistake: the lawyers don’t mind the idea of a vague line between acceptable and unacceptable communication and lots of litigation to help clarify it. There is another option, though, and I’m going to talk about it right now.
A common complaint
The complaint I’m reading today is like so many others: the manager told the complainant/employee to do a particular task in a particular way; the employee had been taught by a different manager to do the task in a different way; the employee objected; the manager got frustrated and raised his voice; and when the employee later went on vacation, the manager had the task done “his” way, causing the employee to feel belittled. According to the complainant, “everyone” in the office feels tension when the manager is around, no one likes him and, really, he should “go”. Add in some differing personal characteristics – in this case, the manager is a male and the complainant is a female – and, voila, a poisoned work environment claim is born.
So what should the employer do about this complaint? Years ago, many employers in this situation would bury their heads in the sand, hoping that the friction would sort itself out. Often, the outcome would be a resignation by the frustrated and demoralized complainant. Today, these cases cry out for a more proactive approach, since ignoring the issue is unwise and can lead to employee illness, a poisoned workplace and employer legal liability. In most Canadian provinces, we now have legal directives that typically require the implementation of an anti-harassment policy and an investigation into any allegations of misconduct. But then what? The law tells us how harassment complaints are to be made and how they should be investigated, but it doesn’t tell us what to do after that. The options for employers include: a. use a legal justice model that encourages lawsuits, grievances and complaints; or b. adopt a new model that shifts our thinking toward reconciliation. Since the legal justice option can result in long and expensive court battles that actually magnify the initial dispute, it’s clear that the Restorative Justice model deserves serious consideration. The P.E.A.R. approach can help.
The P.E.A.R. response
There are compelling business reasons that should motivate every employer to carefully foster a positive culture that encourages productive workplace communication and, also, to respond quickly and concretely to any evidence of incivility, harassment or bullying. It’s a bonus that, in most instances, an employer’s efforts will not only improve productivity in their business but will also reduce legal risks. If you’re an employer, here are the simple P.E.A.R. steps to consider:
Policies. Depending on where your business operates, you likely already have a legal obligation to publish a workplace policy against harassment and violence. Regardless of whether or not it’s legally required, you should implement a strong, carefully worded policy that requires respectful and polite conduct in your workplace. While research into the effectiveness of these policies in stopping harassment and bullying is divided, these documents at least provide a solid statement of behavioural expectations and mechanisms for addressing shortcomings.
Employment agreement. Increasingly, a written agreement that confirms an employee’s understanding and acceptance of both the requirement for positive, respectful behaviour at work and their commitment to a restorative response to misconduct is useful (this second part is referenced below). This kind of agreement helps to establish consistent expectations of the nature of a fair resolution to workplace harassment and an understanding of what will occur when harassment happens.
Action. It’s not enough for employers to simply write policies and contracts. Research indicates that the steps taken to implement these documents and to enforce them are crucial to the establishment of a respectful and healthy workplace. Managers have to understand the documents and also the purposes behind the documents so that they can then consistently and enthusiastically require compliance.
Reconciliation. Particularly if introduced in a respectful workplace policy, Restorative Justice concepts can play a role in reconciling, or truly resolving, workplace harassment and bad behaviour complaints. Restorative Justice, which has been proven to work in the fields of criminal law and school disciplinary cases, can also be successful in the employment context and is on the verge of being workplace law’s “next big thing”. Employers who want to achieve higher satisfaction outcomes for victims of workplace harassment and lower risks of re-offending by perpetrators should seriously consider the benefits of an RJ model in their workplace behaviour strategy and should make reference to it in policies and contracts. The RJ model encourages open communication and understanding, both of which are skills that the law does not really encourage.
What you need to know
Lots of workplace relationships are being strained by inappropriate behaviour and, also, by the looming fear of harassment complaint processes. That strain not only causes mental health risks for employees and contributes to Canada’s $50 billion workplace mental illness absenteeism problem; it also has negative effects on employers’ overall productivity. In other words, employers and employees can both benefit from a tangible and effective conflict resolution process. An obstacle to resolution, however, may actually be the legalization of We know that changing the parameters of acceptable communication between co-workers is a necessity, but how do we do that effectively? One option is to change the behaviour by reshaping our expectations and approach to workplace conduct, with less focus on “legal justice” and more on Restorative Justice. The P.E.A.R. model can help.
 According to Leanin.org, 60% of male managers now feel uncomfortable participating in work activities with female co-workers due to the fear of a harassment allegation. https://www.nbcwashington.com/news/business/Male-Managers-Uncomfortable-Work-Activities-Women-511105442.html, accessed October 4th, 2019.